Prior knowledge

On March 23, 2010, the Supreme Court is scheduled to hear arguments on whether seven Muslim ethnic Uighurs, seized along the Afghanistan-Pakistan border and held in U.S. military detention at Guantanamo Bay since mid-2002, should be released into the United States. The Court will also consider an amici curiae brief prepared in support of these men by law professor Daniel Kanstroom, with assistance from seven Boston College law students.

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The case is Jamal Kiyemba, et al. v. Barack H. Obama, President of the United States, et al. (Kiyemba, a detainee who stood in for the Uighurs in the initial petition, has since been returned to his Ugandan birthplace.) The U.S. government no longer purports that the Uighurs, natives of far-western China, are “enemy combatants.” If repatriated, the men surely face persecution; yet no other country will take them. And so the question put to the Court by the Uighurs’ lawyers is this: Can a federal court require that these individuals be admitted to the United States, given that this action offers “the only possible effective remedy” to indefinite detention?

Kanstroom directs the law school’s International Human Rights Program, and the brief he wrote (with Washington lawyer Theodore D. Frank) is signed by 67 immigration and constitutional law professors across the country. The brief focuses in large part on an immigration case adjudicated by the Supreme Court in 1953, Shaughnessy v. United States ex rel. Mezei, upon which, writes Kanstroom, “the government relies heavily” in the Uighur case. The following text is drawn and adapted from the amici brief.—Ed.

Argument:

[Ignatz] Mezei was born in Gibraltar of “uncertain parentage.” He came to the United States in 1923 and lived in New York until 1948. That year, he left the United States voluntarily to visit his mother in Romania. He spent 19 months in Hungary, and then obtained a quota immigrant visa and made his way by ship to the United States. Mezei arrived at Ellis Island in February 1950, presenting himself as a new immigrant. [Based on national security provisions dating back to the Second World War, he was excluded.] At that point, Mezei attempted to leave the United States. He twice tried to return to Europe, but France and Great Britain both refused him permission to land. The State Department could not negotiate his admission to Hungary so he remained on Ellis Island. Mezei brought a petition for writ of habeas corpus. When the government refused to disclose its confidential information in camera to the court, the court ordered Mezei released on bond. The court of appeals affirmed.

The government then sought Supreme Court review, presenting the case against the backdrop of the Cold War as one that threatened our nation’s ability to control its borders when non-citizens arrive voluntarily, seeking admission. The government wrote in its petition:

Under [the court of appeals’] holding, therefore, any excludable alien who manages to get to our shores may nevertheless obtain most of the benefits of the entry, if, for some reason, the country from which he comes refuses to take him back and no other country is willing to take him.

The government went on to argue that allowing Mezei entry presented national security concerns: “The decision . . . provides a ready tool for espionage. A hostile power could be certain of getting an agent into the United States by the simple expedient of sending him here and refusing to take him back.”

In its merits brief, the government described Mezei’s act of coming ashore as being “granted a haven on Ellis Island” . . . while his claim to enter the country was adjudicated. And “[i]f this situation be considered a hardship, it is a result of the current international situation and does not itself call for extraordinary relief.” Thus, as the government presented the case, two features stand out: First, Mezei came to the border on his own volition and was allowed to disembark on Ellis Island for his own benefit; the U.S. government was not responsible for his unfortunate situation. Second, according to the government, releasing Mezei into the United States would have undermined national security. The main concern was to protect our country from hostile nations trying to ship their citizens to us and compelling their entry.

This Court accepted that characterization of the case, over strenuous dissents from Justices Black, Frankfurter, Jackson, and Douglas. The Court held that Mezei was properly excluded and held without a hearing under the [wartime provisions]. The majority viewed Mezei’s time on Ellis Island as an unfortunate consequence of the decision to exclude him. His “temporary harborage” on Ellis Island was seen as “an act of . . . grace” that bestowed no additional rights. Further, the Court held that “to admit an alien barred from entry on security grounds nullifies the very purpose of the exclusion proceeding.”

In reaching those conclusions, the Court treated the matter as primarily a question of immigration law:

[Mezei] was temporarily excluded from the United States by an immigration inspector acting pursuant to the Passport Act as amended and regulations thereunder.

Mezei [was] heavily criticized in [its] day. Professor Henry Hart [of Harvard] called the proposition that due process for aliens denied entry was whatever Congress had provided “patently preposterous.” The decision, he wrote, “trivialize[d] the great guarantees of due process,” to reach “brutal conclusions.” Such scholarly critique has continued to the present.

Mezei also provoked considerable public outcry. Editorials condemned the decision. Two private bills were introduced in Congress on Mezei’s behalf. Attorney General [Herbert] Brownell eventually agreed to grant Mezei an exclusion hearing before a Board of Special Inquiry. The board found that Mezei was excludable because in 1935 he had received several bags of stolen flour and pleaded guilty to petty larceny, which was a crime of moral turpitude. But the real reason why the government wanted to exclude him was that Mezei had been affiliated with a lodge of the International Workers Order, which had been listed as a communist organization. Yet after the board heard the evidence about Mezei’s activities, it found that he played no more than a minor role in the Communist Party, such as attending meetings and demonstrations and distributing literature. On the basis of the board’s off-the-record recommendation, the attorney general paroled Mezei into the United States, where he lived for many years.

In relying upon Mezei, the government implicitly invokes the so-called “plenary power doctrine” of immigration law, pursuant to which the power of the political branches to exclude aliens has been said to be “a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” (Mezei, 210)

Since it was first articulated [in Chae Chan Ping v. United States (1889), also known as the Chinese Exclusion Case], the plenary power doctrine has proven controversial, generating strong dissents and significant limitations. See, e.g., Fong Yue Ting v. United States (1893), [in which] Justice Brewer, dissenting, asked, “Where are the limits to such powers to be found, and by whom are they to be pronounced? Is it within legislative capacity to declare the limits? If so, then the mere assertion of an inherent power creates it, and despotism exists.” The notion that Congress has plenary power over the treatment of noncitizens was questioned by the Court in Wong Wing v. United States (1896), when it struck down a law that authorized the imprisonment at hard labor of any Chinese citizen judged to be in the United States illegally. The statute provided no right to a judicial trial. The Court held that, even though detention or temporary confinement was permissible “as part of the means necessary to give effect to the provisions for the exclusion or expulsion of aliens,” Congress may not, even by invoking plenary power, subject noncitizens to “infamous punishment at hard labor, or by confiscating their property,” without a judicial trial. Concurring in Wong Wing, Justice Field, the author of the Court’s opinion in the Chinese Exclusion Case, put the matter as follows:

The term “person,” used in the Fifth Amendment, is broad enough to include any and every human being within the jurisdiction of the republic. . . . This has been decided so often that the point does not require argument.

Although detention may be a procedural aspect of the immigration process, it raises basic constitutional issues whenever and against whomever it is used. See, e.g., Kansas v. Hendricks (1997): “A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment. . . .” [Also] Foucha v. Louisiana (1992): “Due process requires that the nature of commitment bear some reasonable relation to the purpose for which the individual is committed.” [And] United States v. Salerno (1987): A “general rule” of substantive due process is that the government may not detain a person prior to a judgment of guilt in a criminal trial. [And] Addington v. Texas (1979): “Civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” [And] Jackson v. Indiana (1972): An individual held as unfit to stand trial cannot be committed for more than a reasonable period necessary to determine whether he will become competent in the foreseeable future.

As this Court recently noted [in Zadvydas v. Davis (2001)], it has “upheld preventive detention based on dangerousness only when . . . subject to strong procedural protections,” including, “proof of dangerousness by clear and convincing evidence, and the presence of judicial safeguards.”

Properly understood, Mezei only holds that aliens who voluntarily seek, and are denied, “admission” to the United States under our immigration laws may be denied entry if no other country is willing to accept them. But the case does not stand for the proposition that aliens who are forced into the custody of the United States against their will, and whose detention has been found unlawful, cannot ever be granted release from detention in the United States, subject to appropriate safeguards. Nor does Mezei, which addressed very specific national security concerns, establish that prolonged detention is always a permissible adjunct to exclusion. The plenary power doctrine, in sum, has never been applied to the issue presented by this case: the constitutionality of executive detention of noncitizens on territory controlled by the United States apparently without time limit. A holding that the Executive has that power is difficult to reconcile with the deepest and best constitutional traditions of our nation. As James Madison once noted, “[even if] aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. . . .”

Conclusion:

This Court’s decision in Mezei, when properly read in light of history and the Court’s subsequent jurisprudence, poses no meaningful barrier to Petitioners’ release from detention in the United States.

Editor’s note: On March 1, 2010, as BCM was coming off the presses, the Supreme Court announced it would not, after all, be providing a decision in the Uighurs’ case. In an unsigned opinion, the Court noted: “By now . . . each of the detainees at issue in this case has received at least one offer of resettlement in another country”—a reference to invitations extended to the Uighur detainees by Switzerland and Palau. In the Court’s expressed view, “this change in the underlying facts may affect the legal issues presented. No court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.”

According to Professor Kanstroom, “the Court’s ruling is understandable in light of new facts, and we are pleased that the decision of the D.C. Circuit”—in which the lower court had denied the Uighurs’ petition—“was vacated. However,” he continues, “these issues will recur, and it is unfortunate that the Court has declined for now to resolve these very compelling and fundamental questions while allowing the government to continue to detain people at Guantanamo Bay who present no threat to U.S. national security. This case is about the fundamental limits placed by law on Executive power to imprison people for long periods of time on government-controlled territory. The Court’s delayed resolution leaves the legal regime dangerously unclear.”